[Cite as Pond v. People, 8 Mich. 150
(1860). This decision concerns self-defense with a firearm. Speaking of
the public role of private self-defense,
counsel for plantiff argued, "A mere legal trespass is a private wrong, and no
crime. A crime is a public wrong .... For the private wrong or trespass ... the
law awards to the injured party his damages or compensation. But for the crime
or public wrong, the law awards no compensation, but punishment." "There is,
therefore, ample reason why a mere legal trespass or private wrong should not be
resisted unto death. It has its ample remedy." "Not so with a crime or public
wrong, for which, when once committed, there is no remedy, though it may be
punished. The law of society, the public safety, therefore, requires that crime
be resisted and prevented; and hence every citizen is invested not only with the
right but duty to repel and prevent it; but the means employed must appear to be
necessary and reasonable for the purpose, in view of the nature of the crime and
all the circumstances of the case." (P. 171) In
its decision, the court commented on this public role, "But the
rules which make it excusable or justifiable to destroy [human life] under some
circumstances, are really meant to insure its general protection. They are
designed to prevent reckless and wicked men from assailing peaceable members of
society, by exposing them to the danger of fatal resistance at the hands of
those whom they wantonly attack, and put in peril or fear of great injury or
death." (P. 173)
"... justifiable homicides [are] where the slayer was regarded as promoting
justice, and performing a public duty; and the question of personal danger did
not necessarily arise, although it does generally. It is held to be the duty of
every man who sees a felony attempted by violence, to prevent it if possible,
and in the performance of this duty, which is an active one, there is a legal
right to use all necessary means to make the resistance effectual."(P. 177)
"[concerning rioters, p]rivate persons who can not otherwise suppress them, or
defend themselves from them, may justify homicide in killing them, as it is
their right and duty to aid in preserving the peace."(P. 178)]

Augustus Pond v. The People.

Homicide, excusable and justifiable. The law
does not require the necessity for taking human life to be one arising out of
actual and imminent danger, in order to excuse the slayer; but he may act upon a
belief, arising from appearances which give him reasonable cause for it that the
danger is actual and imminent, although he may turn out to be mistaken. The
guilt of the accused must depend upon the circumstances as they appear to him,
and he will not be held responsible for a knowledge of the facts, unless his
ignorance arises from fault or negligence. ([1])

Homicide se defendendo, in resisting an
assault not made with felonious intent, is excusable, where the danger to be
resisted is to life, or of serious bodily harm of a permanent character, and
unavoidable by other means in the power of the slayer, so far as he is able to
judge at the time. But he is bound, if possible, to get out of his adversary's
way, and has no right to stand up and resist if he can safely retreat or
escape.

A man assaulted in his dwelling is not obliged to
retreat, but may use such means as are absolutely necessary to repel the
assailant from his house, or prevent his forcible entry, even to the taking of
life. And, if the assault or breaking is felonious, the homicide becomes, at
common law, justifiable, and not merely excusable.

The same circumstances which excuse or justify
homicide in defense of one's self, will excuse or justify it in defense of his
servant.

Whenever a forcible felony is attempted against
person or property, the person resisting the attempt is not obliged to retreat,
but may pursue his adversary if necessary, till he finds himself out of danger.
But he may not properly take life if the evil may be prevented by other means
within his power.

It is immaterial to the justification of homicide
in resisting a forcible felony, whether the act was a felony at the common law,
or made such by statute.(p.151)

Suppressing riots. Private persons may
forcibly interfere to suppress a riot or resist rioters; and they may justify
homicide in so doing, it they can not otherwise suppress them, or defend
themselves, their families or their property.

Curtilage. A building thirty-six feet
distant from a man's house, used for preserving the nets employed in the owner's
ordinary occupation of a fisherman, is, in law, a part of his dwelling, though
not included with the house by a fence. A fence is not necessary to include
buildings within the curtilage, if within a space no larger than that usually
occupied for the purposes of the dwelling and customary out-buildings. ([2])

Practice in Supreme Court: Reversing judgment
on exceptions. The Supreme Court can not, on reversing a judgment on
exceptions, proceed to give such judgment as the facts set forth in the bill of
exceptions would warrant. The court can only consider those facts as they bear
upon the rulings of the court below, and order a new trial if the exceptions are
sustained.

Heard April 24th, 25th, and 26th. Decided May
12th.

Error to the district court of the upper peninsula,
for the county of Mackinac.

The plaintiff in error was tried on an information for the murder of
one Isaac Blanchard, and convicted of manslaughter.

Upon the trial, as appears from the bill of exceptions, the following
facts were proved: The homicide was committed on the 18th day of June, 1859, at
Seul Choix, a point of land in Delta county, which is attached to Mackinac
county for judicial purposes, extending about a mile into lake Michigan, and
situate near its northern extremity about seventy-five miles from Mackinac. It
was inhabited by a considerable population, who were here engaged in the
business of fishing. Their houses and other buildings stood in a line near to
and following the shore of the lake. Amongst these were the house and premises
of the prisoner, where he was carrying on the business of fishing, and was
living with his wife and three young children, one of whom was a young infant,
and the eldest a daughter 12 years old, together with two hired men, named
Daniel Whitney and Dennis Cull. It was a long building about 16 feet square,
contained but one room, and had a bark-roof, and only one window, and but one
door, made of boards, which was fastened to the building with leather hinges,
and opened outward; and upon the (p.152)inside
was fastened and kept closed by means of a rope attached to it and a pin near
the side of the door, around which the rope was drawn and made fast.

Thirty-six feet distant from the prisoner's house was another
building of the prisoner, called a net-house. This was constructed with six
posts set in the ground, having plates upon their top, and the whole was
inclosed with boards an inch or an inch and a quarter thick, nailed on the sides
to the posts, and on the roof nailed to the plates, and to a ridge-pole. The
joints of the roof were also covered with bark, and the bark held in its place
by poles extending from one end to the other. It had a board floor, and but one
door, which opened directly opposite to the door of the prisoner's house. This
door was made of boards, was fastened to the building with leather hinges, and
upon the inside was closed and fastened by the same means and arrangement as the
door of the prisoner's house above described. It also had a latch. The net-house
was about sixteen feet long and fourteen feet wide; contained but one room, had
a berth constructed about two and a half feet high, for the purposes of a
bedstead, in the end of the building opposite that containing the door, which
berth was large enough to accommodate two persons comfortably, and on which the
prisoner's two hired men, Whitney and Cull, had slept regularly, up to the time
of the homicide, during their employment with the prisoner, the former having
been in his service two weeks, and the latter one week immediately preceding.
They took their regular meals with the prisoner's family in his house, and lived
as members of his family. Two of the three persons engaged in the transactions
leading to and immediately connected with the homicide, David Plant and Isaac
Blanchard, jr., the deceased, resided also at Seul Choix point, near its foot,
at a place called the Harbor, Plant about a mile, and Blanchard about
three-fourths of a mile from the prisoner's house. The other, (p.153)Joseph Robilliard, resided near the end of the point,
and not far from the prisoner's premises.

On Thursday, at about noon, of the same week when the homicide
occurred, Plant, in the presence of said Blanchard, at the house of one Downey,
situate on the point, threatened in conversation with Mrs. Downey that he must
whip the prisoner or there would be a fracas. This threat was heard by the young
daughter of the prisoner, who happened to be passing near at the time, and who
immediately went home and communicated the threat to her mother, who thereupon
immediately awakened the prisoner, he being then asleep on a bed, and
communicated the threat to him in these words: "My little girl says in passing
Mr. Downey's, she heard Plant say he was going to whip you." This was about 1
o'clock p.m. On the evening of the same day, at about 8
o'clock, an assembling of from fifteen to twenty persons occurred on the point,
a few rods from the prisoner's house, and between the houses of Joseph Martell
and a Mr. Durocher, which were about one hundred feet apart. The larger part of
these persons resided at the harbor, and between the harbor and the point. They
had, as Mary Pond, a witness for the prisoner, testified, been hunting for the
prisoner, and had overtaken him near Durocher's house. Jerry Williams, a witness
for the people, testified that he was one of the company; that he had been on
board a vessel in the bay, and was returning towards the harbor; that he came
there with a party of persons, and there met another party, and he could not say
how many persons were present, nor how long they remained there.

In the company were Plant, Robilliard and the deceased. The prisoner
was got into the company by Plant, who had called him out of Joseph Martell's
house. They were sitting all around the prisoner, engaged in conversation. They
surrounded him. Their proceedings thus far were observed by the prisoner's
daughter, who was secreted behind Durocher's (p.154)house, in order to look at them and see what they would
do to her father, and she then left, and went home and reported them to her
mother. Whilst the company was so assembled, Plant told the prisoner that he did
not use his neighbors right; that he ought not to pitch on to men not of his
size and abuse them; that if the prisoner wanted to fight anybody, he had better
take a man of his size. There was no evidence of any provocation on the part of
Pond by words or acts. Plant then struck the prisoner in his face with his
fist--the prisoner's hat at the same time falling off--and then kicked him in
his breast. The prisoner did nothing more than pick up his hat and put it on
again. Then they drank whisky together, furnished by Blanchard. In a short time
the prisoner, as Mary Pond expressed it, "got clear of the company." At first,
as stated by other witnesses, he walked off, and then was seen running away
alone into the woods. About 9 or 10 o'clock on the same evening, Plant,
Robilliard and Blanchard came to the door of the prisoner's net-house. The
prisoner's two hired men, Whitney and Cull, were then asleep therein, and when
they went to bed that evening, the door was fastened to the building upon its
hinges, and it was closed and fastened as usual on the inside by means of the
rope above described, which was make fast around a pin or nail near the side of
the door.

Whitney was awakened by the walking of Plant on the floor, and he
then saw the door lying outside on the ground, torn from its hinges, and the pin
or nail that had held the rope was also broken. Plant first went up to the bed,
took hold of Whitney's arm and asked who he was. Whitney told him, and then
Plant said "you are not the man." Plant then asked where the prisoner was.
Whitney replied "at Joseph Martell's." Robilliard and Blanchard remained outside
near the door of the net-house. This was after dark. Plant did not explain to
Whitney (p.155)what he wanted of the prisoner.
They then went to the door of the prisoner's house; Plant opened it. They wanted
the prisoner; Plant asked where he was; his wife replied "I do not know; go and
see on board the little vessel." Plant said, "We have been there, and he was not
there; we must have him absolutely; we have got business with him." She replied,
"What business have you? It is just as well to say it to me as to him; what do
you want to do with him? Say it to me and I will tell him." They said, "No, we
must have him to-night; we do not wish to tell you; we will tell him," and they
then went away towards the point to hunt for him. When they came to the door
there were about twenty persons behind the house.

Just after this occurrence the prisoner came home, stayed from five
to ten minutes, went away, and slept all night at the house of a near neighbor,
Joseph Martell. Between ten and eleven o'clock the same evening, Plant,
Robilliard, and the deceased, went to the house of Thomas Ward after he had gone
to bed, but for what purpose was not shown.

On the next day, Friday, the prisoner was away from home most of the
day, and Whitney saw him but once or twice. He came to the house of Joseph
Martell on that day, between ten and eleven o'clock in the forenoon, to get his
pistol, saying he wanted it for his hired man. He obtained it, carried it away,
but it was not loaded and had no lock.

On the same day, about noon, Plant and the deceased were in company
near the house of Peter Closs; the prisoner was also present, and then the
deceased was standing about one hundred feet off. Plant was heard to make
threats against the prisoner. Plant said to the prisoner, "It is a good while
since you have had a grudge against me; I must whip you to satisfy myself."
Plant went near to the prisoner and told him not to say anything; if he (p.156)did he would give him slaps, or kicks. Plant
then took a stone in his hand, and said, "Don't speak any more; I am a good
Irishman, and will throw it at you." Pond did not say the least thing in reply
to the threats, nor do anything; but went off quietly home. Immediately
afterwards Plant went to the dock of Peter Closs, and there said that he must
whip Augustus Pond, or pass for the biggest loafer on the earth.

On the same day, about two o'clock in the afternoon, Plant and the
prisoner were together at prisoner's premises, when the prisoner took Plant into
the net-house, where they drank together once. They were there about ten
minutes.

On Friday night Plant did not go to bed. Plant, Robilliard, and the
deceased were aboard some vessels near the shore from nine till about eleven
o'clock in the evening, when they left the vessel. It was a bright moonlight
night; the moon on this night was nearly full, and rose at ten o'clock and
eleven minutes in the evening. Whitney and Cull went to bed in the prisoner's
net-house, at about eleven o'clock in the evening. Before going to bed they set
up the door in its usual place, and they soon went to sleep. None of the family
in the prisoner's house went to bed this night, because they were afraid of
Plant, Robilliard and the deceased.

Between one and two o'clock that night, Whitney was waked by boards
being torn from the roof of the net-house, directly over his bed. Cull did not
awake. Plant came inside and said, "Some one is tearing down the net-house; let
us go out and give 'em hell." At this time the west side and a part of the roof
of the net-house were torn down by Robilliard and the deceased, who were
outside, whilst Plant was inside the building. The whole three, Plant,
Robilliard and the deceased, then went to the door of the prisoner's house, and
as to what there transpired at the door, the prisoner's daughter, Mary Pond,
testified as follows:(p.157)

Plant shook the door and said, "Open the door;" mother answered,
"No, what will I open the door for?" Plant said, "We want the master of the
house." Mother asked, "Why do you want to see him?" Plant answered, "We have
business with him." Mother said, "He is not here, and it is just as well to
say it to me as to him." Father then got off the bed and got under it. Plant
shook the door again and said, "Open the door; we want to search the house."
Mother replied, "I told you he is not here." Plant then asked for some
crackers. I went and got them, whilst mother stood by the door, fastening it.
She took the crackers and tried to give them through a crevice between the
logs near the door. Blanchard did not want to take them through the crevice;
he wanted the door opened, but finally took them through the crevice. Plant
then again said, "Open the door." Mother refused. He then again said "open the
door or you will regret it." Mother replied, "No, I will not open it." Father
was then going to come out from under the bed; mother said to him, "For God's
sake do not come out, it will be your death-blow." Father came out, but went
under it again. Blanchard then asked for some sugar; I got it, gave it to
mother, and she tried to give it to them through the crevice; they declined
taking it through the crevice, and Plant said, "If you don't open the door you
will regret it;" "open the door right away;" "open the door; it is Dave Plant,
who speaks with you to-night; when Dave Plant tells you to open your door, you
must open right away." She then slid the cord along, and opened the door from
six to twelve inches, passed out the sugar; they did not take it, but Plant
took hold of her arm and squeezed it; mother told him to let go; he answered,
"No I will not, I want you to open the door." Mother fainted; she did not
fall, but leaned on the door; they soon took the sugar and put it in their
whisky. They then left, going towards the house of Louis Robinson. He lives in
the (p.158)same house with Thomas Ward. As
they left they said, "Let us go towards Robinson's and see."

The prisoner then came out of his house, went to the house of Peter
Closs, a near neighbor and brother-in-law, there obtained a double-barreled shot
gun, both barrels being already loaded with pigeon-shot. In about a quarter of
an hour after he left his house, he returned with the gun, went into the
net-house, looked around, and then went into his own house in company with
Whitney. Whitney stayed in the house a few minutes, then came out, did not go to
bed again during the night, and went towards Thomas Ward's, where he heard the
parties making a noise.

Plant, Robilliard and the deceased went to Robinson's house and
asked for Thomas Ward. Ward and the family were in bed. They were told by Mrs.
Robinson that he was not within. They insisted that he was. They were then told
by Mrs. Robinson that she had a sick child. They said they didn't care a damn,
they would come in any way, and if they couldn't come through the door, they
would come through the roof. Mrs. Robinson then told them that Ward was in their
net-house. They went to find him there, but not finding him, came back to the
door, and said they would break the door open or come through the roof. Then
Ward, who was in the house, spoke and told them to wait and he would go out.
Ward got up, dressed himself, and went out. Plant asked Ward to go around with
them. Ward refused. Plant asked Ward if he was afraid. Ward said he was afraid
of going with them, they acted so mean. The deceased then put his hand on Ward's
shoulder, and told him not to be afraid, as they were not going to hurt him. The
deceased then asked for something to eat. Ward went into the house to get
something to eat, and whilst he was in for that purpose, the deceased stood by
the door and told Ward not to be afraid, he wouldn't let any one in. Ward (p.159)came out with some bread and butter, and gave
it to all three, which they ate. While eating the bread and butter the deceased
said, "We have torn down half the net-house of Augustus Pond, coming along, and
have left the rest, so when we go back we will have the rest of the fun." He
also said, "I want to see Gust Pond; he abused an Irishman, and I want to abuse
him just as bad as he abused the Irishman." He also said, "Pond has to be abused
any way." He further said, "Thomas, this is good bread; I don't know but it may
be the last piece of bread I'll eat." On this same occasion Plant said, "I must
have a fight with Gust Pond, and if I cant whip him, Isaac will whip him."

The deceased was then standing by the side of Ward, and had his hand
on Ward's shoulder. Plant spoke of the three as being an army, and said that he
was captain, Robilliard was Bonaparte, and Blanchard was the soldier, and was to
do what they ordered. Plant said he had wanted Blanchard to go into prisoner's
house, and he was going to punish him by drinking three times to his drinking
once, for not doing as he was told to do. Plant and Robilliard drank twice by
the door. Ward then went into his house, and Plant, Robilliard and the deceased,
went away towards George Porkains' house.

They soon returned, and in passing Ward's house, they were heard to
say that "they were going back again; were going to find him, and to whip him,
or have the soul out of him." In passing, the deceased stopped by Ward's
net-house. Plant and Robilliard went on towards the prisoner's house, and when
they were two or three hundred feet from Ward's, as judged by the sound, Plant
halloed for Isaac Blanchard, thus: "Isaac, come along; are you afraid? What in
hell is the use of being afraid? Follow me, you follow a man." Blanchard
replied, "I am not afraid," and he then went in the direction of the prisoner's
house.(p.160)

Plant, Robilliard and the deceased, then went to the door of the
prisoner's house. They asked admission, which was refused by the prisoner's
wife. She asked what they wanted. They replied that they wanted the master of
the house, and that they wanted to come in and search the house. They were not
admitted. The door was fastened with a cord.

The whole three then went to the prisoner's net-house. Robilliard
and the deceased stood outside, and they commenced tearing down the net-house;
at the same time Plant went inside, where Dennis Cull was sound asleep in bed.
The first that Cull knew was his being pulled out of bed on to the floor. Plant
was on top of him with his hand on his throat, choking him. Cull asked who it
was choking him, but got no answer. Just at this time, whilst Plant was in the
net-house and Robilliard and the deceased were tearing it down, the prisoner
came to the door of his house, opened it, and halloed thus: "Who is tearing down
my net-house?" To this there was no response.

Near or about the same time, the voices of a woman and child were
heard crying near the prisoner's house, and by the woman's voice the words "For
God's sake" were spoken twice.

The boards were rattling at the same time that these voices of the
woman and child were heard. The prisoner said, "Leave or I'll shoot," and after
this the tearing down of the net-house continued. In about half a minute after
the first order to leave, the prisoner said again, "Leave, or I'll shoot." These
orders to leave were spoken with a loud voice.

A little before the firing of the gun, and whilst Plant was in the
net-house, the cries of Cull were heard in the net-house. He halloed as if he
was in pain. He did not speak, but halloed twice.

The boards stopped rattling about three or four seconds (p.161)before the gun was fired, and the gun was fired
from, two to four seconds after the prisoner's second order of "Leave, or I'll
shoot."

The gun was fired a little before daybreak, on the morning of
Saturday, the 18th of June. It was proved clearly that the prisoner fired it. It
was a double-barreled shot gun, loaded with pigeon shot. Only one barrel was
discharged.

The deceased was found dead the next morning, a little after
daylight, in a small path in the bushes, about two hundred and twelve feet from
the door of the prisoner's house, with wounds upon his person from pigeon shot,
sufficient to cause death.

On the same morning, after daybreak, and before sunrise, the
prisoner, at the house of Mr. Beaudoin, his father-in-law, and who lived near,
met his brother Louis Pond, who was constable and acting as such, and residing
at Seul Choix. Prisoner said to his brother that he had come to give himself up
to him, to take him for what he had done; and that he wanted to reach Beaver
islands, to give himself up to the law. The Beaver islands are about twenty-five
miles from Seul Choix. He addressed these words to his brother: "I come and
surrender myself to you." His brother did not take him, because, as he said, the
prisoner's men understood the matter better than he did, and at that time the
brother did not think of his being a constable, as he was very much confused and
excited from the occurrence. The prisoner then engaged his two hired men,
Whitney and Cull, to go with him to Beaver islands. On applying to Whitney for
the purpose, he said to him that he should have to go to Beaver islands to give
himself up, and requested them, Whitney and Cull, to go with him and row the
boat. Whitney and Cull started with him for Beaver islands about sunrise, in a
boat, and when within about seven miles of said islands, they were overtaken by
a boat from (p.162)Seul Choix, containing
Plant, Robilliard and three other persons, who took the prisoner into their
boat, one of them being a constable, and brought him back to Seul Choix, and
from there he was brought to the jail at Mackinac for confinement.

Wilson Newton was sworn as a witness for the prosecution, and he
testified as to the different conversations and statements of the prisoner at
different times concerning the homicide, after its occurrence. Upon his
examination in chief, he testified that the prisoner said that Robilliard was on
the roof of the net-house pulling the boards off; that Blanchard stood on the
ground catching them, and he came out of his house and shot Blanchard, though he
thought he had missed him because he ran; that he couldn't tell how many there
were together; that he fired into the pile, and as near as he could judge there
were two or three; that Blanchard was on the run when he fired, and he fired
with a shot gun that he got from a brother-in-law; that Blanchard stood with his
side partly towards him, and that he couldn't tell how far it was to Blanchard
from where he fired.

On the cross-examination, the witness testified that the prisoner
conversed with him fully and freely about the homicide. Prisoner told him the
object of his going to Beaver islands. He told the particulars of the homicide,
as witness supposed, but witness was not sure that he (witness) recollected all.
The prisoner explained to witness why he shot, and said that Plant, Robilliard
and the deceased were prowling around his shanty; that they had been to his
house more than once that night; that they wanted to come into his
dwelling-house; that they tried to get in, and his wife held the door; that she
kept the door fast, and barred or held them out; that the first time they came
they tore a part of the roof boards off; that he was under the bed when they
were at the door, and he gave as a reason for going under the bed, that he was
afraid of them; (p.163)that there was a quarrel
between him and Plant; that he was afraid they would flog him; that he had kept
away from them from Thursday night to Saturday morning; that he had kept out of
their sight as much as he could; that he had kept dodging them; that they
threatened to tear down the roof of his dwelling, but was not positive whether
prisoner said they threatened to do this the first or second time they came on
Friday night; and prisoner said he was afraid they would pull his heart out if
they got hold of him, or his heart's blood, or something like that; and anyhow
conveyed the idea that he was afraid of his life.

Some further evidence was given, and some questions arose as to the
admissibility of evidence, but as these were not passed upon in this court, that
portion of the bill of exceptions which presents them is omitted.

After counsel had summed up the cause, the court charged the jury
generally in regard to the law of homicide as applied to this case, and further
instructed them as follows:

1. In regard to the ground of self-defense, the jury must be
satisfied from the evidence that it was rendered necessary from an attack then
made upon the prisoner's person, by which his life was endangered, or he was in
peril of great bodily injury, and such consequence could not otherwise be
avoided; that in such cases it is the duty of the party to use other means, by
retreating, or otherwise, if he can so avoid the apprehended consequence; that
he can only resort to the taking of life by a deadly weapon when the attack is
being made so suddenly, and under such circumstances, that he could not, by
retreating or otherwise, avoid the apprehended injury; that the circumstances
must appear from the evidence to have been such as to warrant this belief, and
induce this conviction in the mind of the accused.

2. As to another ground of defense, the defense and protection of
Dennis Cull, the prisoner's servant, the court charged in like manner, that the
jury must be satisfied that (p.164)there was a
like necessity from a like assault upon his life or person; and that if the jury
should find from the evidence that the prisoner thus took the life of the
deceased, either in self-defense or in defense and protection of Cull, that they
should acquit the prisoner.

3. As to another ground of defense, the attack upon and destruction
of the prisoner's building called the net-house, the court charged, that while
the prisoner would have a right to use ordinary measures to protect his
net-house from injury and destruction, and to use force for that purpose, yet he
had no right for that purpose to resort to a deadly weapon, and to take the gun,
shoot and kill the deceased; that the resort to and firing of the gun for this
purpose was unlawful, and the homicide in respect to this alleged ground of
defense was without sufficient excuse or justification; that the attack upon his
building, and the injury to it, were a legal trespass for which he might seek
and have redress in the courts, but that he had no right to repel the same by
firing the gun and shooting the deceased.

To this third instruction the prisoner excepted.

The prisoner, by his counsel, then prayed the court to instruct the
jury:

1. That if, from all the evidence and circumstances proved, the jury
find the prisoner had reasonable ground to believe that there was a design to
destroy his life, or commit any felony on his person, and that the deceased was
either the principal in such design, or present as accessory, the killing of the
deceased will be excusable homicide, although it afterwards appear that no
felony was intended.

Which instruction the court refused to give as prayed, but did
instruct the jury as so requested, with the following addition and
qualification: "That it must also appear from the circumstances that the taking
the life of the deceased was necessary for the purpose of saving his own (p.165)life, or protecting himself from such felony
upon his person, and that the intent was then about being executed."

2. That if from all the evidence and circumstances proved, the jury
find that the prisoner had reasonable grounds to believe that there was a design
to destroy the life of the prisoner's servant, Dennis Cull, or commit any felony
upon his person, and that the deceased was either the principal in such design,
or present as accessory, the killing of the deceased will be excusable
homicide.

Which instruction the court refused to give as prayed, except with
the following qualification and addition: "That it must also appear that the
intent was then being executed, and that the taking the life of the deceased was
necessary for saving the life of the servant, or protecting him from such
felony."

3. That if from all the evidence the jury find, that the homicide
was committed in repelling the commission of a felony, or atrocious crime
against the person of the prisoner, or of his servant, and if from all the
evidence and all the circumstances as proved, the jury find that the prisoner
used only the reasonable and necessary means to prevent it, the act of killing
will be excusable homicide.

Which instruction the court refused to give as prayed, but did
instruct the jury as requested, with the following addition and qualification:
"If it could not otherwise be avoided."

4. That if from all the evidence, the jury find that the homicide
was committed in repelling the commission of a burglary or other felony upon the
dwelling of the prisoner, and if from all the evidence and all the circumstances
as proved, the jury find that the prisoner used only the reasonable and
necessary means to prevent it, the act of killing will be justifiable
homicide.

5. That if from all the evidence, the jury find that the net-house
of the prisoner was an appurtenance, or out-building, of the prisoner's
dwelling, and parcel of the messuage, (p.166)and was regularly and ordinarily slept in at the time of
the homicide by the prisoner's servants and members of his family, it was a
dwelling within the meaning of the law; and if they further find, that the
homicide was committed in repelling the commission of a burglary, or other
felony on said building, by the deceased, either as principal or accessory, and
the prisoner used only the reasonable and necessary means to prevent it, the act
of killing will be justifiable homicide.

6. That if from all the evidence, the jury find that the homicide
was committed in repelling the commission of an atrocious crime against the
prisoner's property, by the deceased as principal, or as aider and abettor, and
that the prisoner used only the reasonable and necessary means to prevent it,
the act of killing will be justifiable homicide.

7. That if from all the evidence, the jury find that the deceased
was engaged at the time of the homicide as principal or accessory, in breaking
and entering in the night time the prisoner's dwelling, with intent willfully
and maliciously to destroy or injure the same, or to commit any other felony,
and if they further find that the homicide was committed in repelling the same,
and the prisoner used only the reasonable and necessary means to prevent it, the
act of killing will be justifiable homicide.

8. That if, from all the evidence, the jury find that the homicide
was committed in repelling the willful and malicious destruction or injury of
the prisoner's building, and the prisoner used only the reasonable and necessary
means to prevent it, the act of killing will be justifiable homicide.

9. That a man's house is his castle, and that the making an attack
upon a dwelling, and especially in the night, the law regards as equivalent to
an assault upon a man's person; and if from all the evidence, the jury find that
the homicide was committed in repelling a willful, malicious and destructive
attack upon the prisoner's dwelling, in such case the prisoner was not bound to
retreat or abandon the dwelling (p.167)to his
adversary. And if the jury then find that the prisoner used only the reasonable
and necessary means to prevent the attack, the killing will be justifiable
homicide. Which said instructions, numbered 4, 5, 6, 7, 8 and 9, the court
refused to give, and the prisoner excepted.

10. That the prisoner had a right to judge and act upon the facts
and circumstances which surrounded him, and as they appeared to him at the time
of the homicide, and if from all the evidence, the jury find that the homicide
was committed in repelling the willful and malicious destruction of the
prisoner's building, and the prisoner used only the reasonable and
necessary means to prevent it, the act of killing will be justifiable
homicide.

Which said instruction the court refused to give as prayed, except
with the following addition and qualification: "but he could not take life in so
doing, or use a dangerous or deadly weapon for that purpose."

As to the fourth instruction above prayed, the court had in the
general charge to the jury, instructed them that a man's dwelling-house is his
castle; that if the deceased and those acting with him, had made an attack on
the dwelling-house occupied by the prisoner with his wife and children, and
attempted to break and enter it for any unlawful purpose, the prisoner would
have the right to repel the same by force, and prevent its consummation, and in
doing so, take life, if necessary for that purpose, and the court had already
charged fully as above shown, in relation to the alleged injury to, and
destruction of the net-house. Said fourth instruction was refused, because the
court had already charged fully in respect to it; and further there was no
evidence, nor was it insisted or claimed that there was any, tending to show
such burglary or felony upon the dwelling-house occupied by the prisoner with
his wife and children. But the prisoner's counsel claimed and insisted, that the
net-house, under the evidence, was in law a dwelling-house of the prisoner, and
that on that ground, and on the evidence, the jury should be instructed as in
said fourth instruction above prayed.(p.168)

As to the seventh instruction above prayed, the court had already
fully charged as above stated in reference to the fourth instruction, and there
was no evidence, nor was it insisted or claimed that there was any, tending to
show any such attack upon the prisoner's dwelling occupied by him with his wife
and children, and so also as to the ninth Instruction above prayed.

The subject of the 5th, 6th and 8th instructions above prayed, the
court thought had already been covered by the general charge as above shown, in
reference to the defense alleged, based on the attack upon and injury to the
net-house.

The jury having found the prisoner guilty of manslaughter, the court
sentenced him to confinement at hard labor in the state prison for the period of
ten years.

Buel & Trowbridge, for plaintiff in
error:

The main questions arising in this case are:

1st. Whether the prisoner had a right to act upon the circumstances
as they appeared to him, and whether he would be justified if he committed the
homicide in the real and honest belief that he or his servant were in great
danger of death or serious bodily harm, although it should afterwards turn out
that he was mistaken, and there was in fact neither design to do harm or serious
injury, nor danger that it would be done.

"When from the nature of the attack, there is reasonable ground
to believe that there is a design to destroy his life, or commit any felony
on his person, the killing of the assailant will be excusable homicide,
although it should afterwards appear that no felony was intended:"
Commonwealth v. Selfridge, Whart. Hom., app. 417,
456.

The Supreme Court of this state has adopted the decision in
Selfridge's case in totidem verbis, and commented on it as expressing the
well established and recognized doctrine on this subject: People v. Doe, 1 Mich., 457.(p.169)

The intent constitutes the essence of every crime; and
therefore if a man kill another, really and honestly believing himself
to be in great danger of death or serious bodily harm, it is neither murder nor
manslaughter, but self-defense; and he will be held excusable, although it
should afterwards turn out that he was mistaken, and there was really no
necessity for the extreme measure: Granger v. State, 5 Yerg.,
459.

2d. Whether, under the evidence and circumstances as proved, the
"net-house" was a dwelling of the prisoner.

Any house for the dwelling and habitation of man is a
dwelling-house, wherein burglary may be committed: 2 East P. C.,
491; Armour v. State, 3 Humph., 387.

A dwelling-house need not be under one roof. It may be a cluster of
separate buildings, and it includes the out-houses and all buildings in the
cluster appurtenant and auxiliary, being parcel of the messuage, and within the
curtilage, and which are subservient to the main dwelling for the purpose of
habitation: 1 Bish. Cr. L., §§ 165, 170, 171;
3 Greenl. Ev., § 80; Whart. Cr. L., §§
1557, 1560, 1561; Rex v. Walters, 1 Moody,
13; Rex v. Clayborn, Russ. & Ry.,
360; State v. Langford, 1 Dev., 253.

3d. Whether the prisoner had a right to resort to the use of deadly
weapons in repelling the willful and malicious destruction of his building.

Blackstone says, that "such homicide as is committed for the
prevention of any forcible and atrocious crime, is justifiable by the
law of nature, and also by the law of England as it stood as early as the time
of Bracton:" 4 Bl. Com., 180.

A man may repel force by force in defense of his person, habitation
or property, against any one who manifestly intends or endeavors by violence or
surprise to commit a known felony on either, and if he kill him in so doing, it
is justifiable homicide: 1 East P. C., 271; Foster,
273; 2 Bish. Cr. L., §§ 553, 569; Gray v. Combs, 7 J.J. Marsh., 482;
U.S. v. Travers (Justice Story's opinion), 2 Whart. Cr. C.,
497; Hinchliff's Case, 1 Lewin Cr. C.,
168. See also the law of riots and riotous homicide: Whart.
Hom., 352; Whart. Cr. L., § 1024. It must
logically follow from this rule, that a man may use whatever force may be
necessary to make his defense effectual; otherwise the rule is a nullity, and
means nothing.

The court instructed the jury "that the attack upon the prisoner's
building, and the injury to it, were a legal trespass, for which he might seek
redress in the courts." This proposition is technically correct, as it would be
in any case of burglary, arson, or any other criminal assault upon property. But
taken in connection with the context of the charge, and as a naked
proposition, it being so delivered without explanation to its whole
bearing and application, and without the slightest notice of
distinction between the right to repel a mere legal and civil
trespass on property, and the right to repel its felonious and
criminal destruction or injury, the proposition was well
calculated to confound and mislead the jury, and lead (p.171)them to suppose that the prisoner had no remedy against
the crime by using reasonable and necessary means to prevent it, and that he had
no other remedy than to submit to the crime, if he could not
peaceably prevent it, and then "seek redress in the courts" by civil
suit for the value of the property destroyed. It is submitted that such is not
the spirit nor the letter of our enlightened system of jurisprudence.

There is a clear distinction noticed by all the authorities between
the right of defense against a felonious or criminal attack upon property, and
of defense against a mere trespass, which the court in this case entirely
overlooked.

A mere legal trespass is a private wrong, and no crime. A crime is a
public wrong, and, according to its nature, may or may not be a legal trespass
or private wrong. For the private wrong or trespass, in either case, the law
awards to the injured party his damages or compensation. But for the crime or
public wrong, the law awards no compensation, but punishment.

There is, therefore, ample reason why a mere legal trespass or
private wrong should not be resisted unto death. It has its ample remedy.

Not so with a crime or public wrong, for which, when once committed,
there is no remedy, though it may be punished. The law of society, the public
safety, therefore, requires that crime be resisted and prevented; and hence
every citizen is invested not only with the right but duty to repel and prevent
it; but the means employed must appear to be necessary and reasonable for the
purpose, in view of the nature of the crime and all the circumstances of the
case.

All crime, therefore, can and should be resisted; but whether the
degree of force used be necessary, and whether resistance unto death be
justifiable in any particular case, are not matters of law for the court, but
fact for the jury, (p.172)to be submitted to
them under the law and the evidence, which in the present case the court refused
to do: State v. Clement, 32 Me., 279; U.S. v. Wiltberger, 3 Wash. C. C., 521; and the
authorities generally.

J. M. Howard, attorney-general, for the
people:

Under our statute, the destruction of the net-house was undoubtedly
a felony, but not such a felony as the law requires to justify the slaying of
the offender in order to prevent it. While a man may use all reasonable and
necessary force to defend his real or personal estate, of which he is the actual
possessor, against another who comes to dispossess him without right, he can
never innocently carry his defense to the extent of killing the aggressor:
2 Bish. Cr. L., § 558; 1 Ibid., §§
549, 559, 622; 4 Mass., 391; 1 C. & Marsh., 209; 32 Me.,
279; 1 Mich., 456. The attack upon the
net-house, though technically a felony, was in its nature a mere trespass, and
it is believed that no adjudicated case can be found where the act of committing
a mere trespass has been held to justify and excuse a homicide.

The net-house was not the prisoner's dwelling-house. To make such an
outhouse a subject of burglary, the dwelling-house proper and the outhouse must
be inclosed by a common fence: 3 Greenl. Ev., §§ 79,
80; 4 Bl. Com., 224; 1. Russ.
& Ry., 187. Though a man may occupy two dwelling-houses, yet the
structure must possess such qualities as indicate that it is intended as a
residence and habitation: 1 Bish. Cr. L., § 166.
Sleeping in it is not alone sufficient: 2 East P. C.,
499.

The defense of this case, as presented in the court below, was based
upon a claim that the accused was only chargeable with excusable or justifiable
homicide. And as most of the questions raised before us involve the
consideration of the same subject, it may be necessary to examine somewhat
carefully into the rules which divide homicide into its various heads, and
determine the character of each act of slaying.

The facts are claimed, by the counsel for the accused, to have a
tendency to establish the act as innocent on various grounds--first, as
excusable in defense of himself or his servant; second, as justifiable in
repelling a riotous attack, and, third, as justifiable in resisting a
felony.

The first inquiry necessary is one which applies equally to all of
the grounds of defense; and is whether the necessity of taking life, in order to
excuse or justify the slayer, must be one arising out of actual and imminent
danger; or whether he may act upon a belief, arising from appearances which give
him reasonable cause for it, that the danger is actual and imminent, although he
may turn out to be mistaken.

Human life is not to be lightly disregarded, and the law will not
permit it to be destroyed unless upon urgent occasion. But the rules which make
it excusable or justifiable to destroy it under some circumstances, are really
meant to insure its general protection. They are designed to prevent reckless
and wicked men from assailing peaceable members of society, by exposing them to
the danger of fatal resistance at the hands of those whom they wantonly attack,
and put in peril or fear of great injury or death. And such rules, in order to
be of any value, must be in some reasonable degree accommodated to human
character and necessity. They should not be allowed to entrap or mislead those
whose misfortunes compel a resort to them.(p.174)

Were a man charged with crime to be held to a knowledge of all facts
precisely as they are, there could be few cases in which the most innocent
intention or honest zeal could justify or excuse homicide. The jury, by a
careful sifting of witnesses on both sides, in cool blood, and aided by the
comments of court and counsel, may arrive at a tolerably just conclusion on the
circumstances of an assault. But the prisoner, who is to justify himself, can
hardly be expected to be entirely cool in a deadly affray, or in all cases to
have great courage or large intellect; and can not well see the true meaning of
all that occurs at the time; while he can know nothing whatever concerning what
has occurred elsewhere, or concerning the designs of his assailants, any more
than can be inferred from appearances. And the law, while it will not generally
excuse mistakes of law (because every man is bound to know that), does not hold
men responsible for a knowledge of facts unless their ignorance arises from
fault or negligence.

A criminal intent is a necessary ingredient of every crime. And
therefore it is well remarked by Baron Parke in Regina v.
Thurborn, 2 C. & K., 832, that "as the rule of law, founded on
justice and reason, is that actus non facit reum nisi mens sit rea, the
guilt of the accused must depend on the circumstances as they appear to him."
And Mr. Bishop has expressed the same rule very clearly, by declaring that "in
all cases where a party, without fault or carelessness, is misled concerning
facts, and acts as he would be justified in doing if the facts were what he
believed them to be, he is legally as he is morally innocent: 1 Bish.
Cr. L., § 242.

These principles have always been recognized, and are sustained by
numerous authorities; but they need no vindication, and a further citation would
add nothing to the clear and intelligible statements already referred to. And
from an examination of some of the charges given, we (p.175)are very much inclined to believe that the court below
entertained the same views, at least as to some branches of the defense. But as
some of the charges actually given, and particularly those in response to the
first and second instructions requested, negative this rule, and the jury upon
those must have been misled, we must regard these charges as erroneous unless
they were inapplicable to the case altogether. Their applicability will be
presently considered.

In order to determine the materiality of the questions of law
raised, it becomes necessary to determine under what circumstances homicide is
excusable or justifiable. In doing this, it will be proper to advert merely to
those instances which may be regarded as coming nearest to the circumstances of
the case before us. The other cases we are not called upon to define or
consider; and what we say is to be interpreted by the case before us.

The only variety of excusable homicide (as contradistinguished from
justifiable homicide at common law) which we need advert to, is that which is
technically termed homicide se aut sua defendendo, and which embraces the
defense of one's own life, or that of his family, relatives or dependents,
within those relations where the law permits the defense of others as of one's
self. Practically, so far as punishment is concerned, there is no distinction
with us between excusable and justifiable homicide; but a resort to common law
distinctions will nevertheless be convenient, in order to illustrate the
difference between the various instances of homicide in repelling assaults,
according as they are or are not felonious. Homicide se defendendo was
excusable at common law when it occurred in a sudden affray, or in repelling an
attack not made with a felonious design. According to Mr. Hawkins, it was
excusable and not justifiable, because, occurring in a quarrel, it generally
assumed some fault on both sides: Hawk. P. C., B. 1, Ch. 28, §
24. In these cases, the original assault not being with a
felonious (p.176)intent, and the danger arising
in the heat of blood on one or both sides, the homicide is not excused unless
the slayer does all which is reasonably in his power to avoid the necessity of
extreme resistance, by retreating where retreat is safe, or by any other
expedient which is attainable. He is bound, if possible, to get out of his
adversary's way, and has no right to stand up and resist if he can safely
retreat or escape. See 2 Bish. Cr. L., §§ 543 to 552, 560 to
562, 564 to 568; People v. Sullivan, 3 Seld.,
396; 1 Russ. Cr., 660, et seq. Mr. Russell lays
down the rule very concisely as follows (p. 661): "The party
assaulted must therefore flee, as far as he conveniently can, either by reason
of some wall, ditch, or other impediment, or as far as the fierceness of the
assault will permit him; for it may be so fierce as not to allow him to yield a
step without manifest danger of his life or great bodily harm; and then, in his
defense, he may kill his assailant instantly. Before a person can avail himself
of the defense that he used a weapon in defense of his life, he must satisfy the
jury that that defense was necessary; that he did all he could to avoid it; and
that it was necessary to protect his own life, or to protect himself from such
serious bodily harm as would give him a reasonable apprehension that his life
was in immediate danger. If he used the weapon, having no other means of
resistance, and no means of escape, in such case, if he retreated as far as he
could, he would be justified." A man may defend his family, his servants or his
master, whenever he may defend himself. How much further this mutual right
exists, it is unnecessary in this case to consider. See 2 Bish. Cr.
L., § 581, and cases cited; 1 Russ. Cr.,
662; 4 Bl. Com., 184.

There are many curious and nice questions concerning the extent of
the right of self-defense, where the assailed party is in fault. But as neither
Pond nor Cull were in any way to blame in bringing about the events of Friday
night, which led to the shooting of Blanchard, it is not (p.177)important to examine them. The danger to be resisted
must be to life, or of serious bodily harm of a permanent character; and it must
be unavoidable by other means. Of course, we refer to means within the power of
the slayer, so far as he is able to judge from the circumstances as they appear
to him at the time.

A man is not, however, obliged to retreat if assaulted in his
dwelling, but may use such means as are absolutely necessary to repel the
assailant from his house, or to prevent his forcible entry, even to the taking
of life. But here, as in the other cases, he must not take life if he can
otherwise arrest or repel the assailant: 2 Bish. Cr. L., §
569; 3 Greenl. Ev., § 117;
Hawk. P. C., B. 1, ch. 28, § 23. Where the assault or
breaking is felonious, the homicide becomes justifiable, and not merely
excusable.

The essential difference between excusable and justifiable homicide
rests not merely in the fact that at common law the one was felonious, although
pardoned of course, while the other was innocent. Those only were justifiable
homicides where the slayer was regarded as promoting justice, and performing a
public duty; and the question of personal danger did not necessarily arise,
although it does generally.

It is held to be the duty of every man who sees a felony attempted
by violence, to prevent it if possible, and in the performance of this duty,
which is an active one, there is a legal right to use all necessary means to
make the resistance effectual. Where a felonious act is not of a violent or
forcible character, as in picking pockets, and crimes partaking of fraud rather
than force, there is no necessity, and, therefore, no justification, for
homicide, unless possibly in some exceptional cases. The rule extends only to
cases of felony, and in those it is lawful to resist force by force. If any
forcible attempt is made, with a felonious intent against person or property,
the person resisting is not obliged to retreat, but may pursue (p.178)his adversary, if necessary, till he finds himself out
of danger. Life may not properly be taken under this rule where the evil may be
prevented by other means within the power of the person who interferes against
the felon. Reasonable apprehension, however, is sufficient here, precisely as in
all other cases.

It has also been laid down by the authorities, that private persons
may forcibly interfere to suppress a riot or resist rioters, although a riot is
not necessarily a felony in itself. This is owing to the nature of the offense,
which requires the combination of three or more persons, assembling together and
actually accomplishing some object calculated to terrify others. Private persons
who can not otherwise suppress them, or defend themselves from them, may justify
homicide in killing them, as it is their right and duty to aid in preserving the
peace. And perhaps no case can arise where a felonious attempt by a single
individual will be as likely to inspire terror as the turbulent acts of rioters.
And a very limited knowledge of human nature is sufficient to inform us, that
when men combine to do an injury to the person or property of others, of such a
nature as to involve excitement and provoke resistance, they are not likely to
stop at half-way measures, or to scan closely the dividing line between felonies
and misdemeanors. But when the act they meditate is in itself felonious, and of
a violent character, it is manifest that strong measures will generally be
required for their effectual suppression, and a man who defends himself, his
family or his property, under such circumstances, is justified in making as
complete a defense as is necessary.

When we look at the facts of this case, we find very strong
circumstances to bring the act of Pond within each of the defenses we have
referred to. Without stopping to recapitulate the testimony in full or in
detail, we have these leading features presented: Without any cause or
provocation given by Pond, we find Plant, Robilliard and (p.179)Blanchard combining with an expressed intention to do
him personal violence. On Thursday evening this gang, with from fifteen to
twenty associates, having been hunting for Pond, found him at a neighbor's, and,
having got him out of doors, surrounded him, while Plant struck him with his
fist, and kicked him in the breast, with insulting language, evidently designed
to draw him into a fight. He escaped from them, and ran away into the woods, and
succeeded in avoiding them that night. That same night they tore down the door
of the net-house, where his servants were asleep, in search of him, and not
finding him there went to the house, the whole rabble being with them, and
wanted Pond, and expressed themselves determined to have him; but refused to
tell his wife what they wanted of him. Not finding him there, they started off
elsewhere in search of him. This was between nine and ten o'clock at night.
About noon of Friday, Plant and Blanchard met Pond, when Plant threatened again
to whip him, and then went up to him, told him not to say anything, and that if
he did he would give him slaps or kicks. Plant then took a stone in his hand,
and threatened if Pond spoke to throw it at him. Pond said nothing, but went
home quietly, and Plant went off and was heard making further threats soon
after. Friday night neither Pond nor his family went to bed, being in fear of
violence. Between one and two o'clock that night, Plant, Robilliard and
Blanchard went to the net-house, and partially tore it down, while Whitney and
Cull were in it. They then went to the house where Pond, his wife and children
were, shook the door, and said they wanted Pond. Pond concealed himself under
the bed, and his wife demanded what they wanted of him, saying he was not there,
when Plant shook the door again, and ordered Mrs. Pond to open it; saying they
wanted to search the house. She refusing, they resorted to artifice, asking for
various articles of food, and objecting to receiving them except through the
door. Plant then repeatedly (p.180)commanded
her to open the door, saying if she did not, she would regret it. On opening the
door from six to twelve inches, by sliding the cord, to hand them some sugar,
which they demanded, they did not take the sugar, but Plant seized Mrs. Pond's
arm, and squeezed it until she fainted. Not succeeding in getting into the
house, they then left for Ward's, and Pond went to the house of his
brother-in-law, and borrowed a double-barreled shot gun loaded with pigeon shot,
and returned home. While at Ward's, Blanchard told the latter that they had torn
down part of Pond's net-house, and had left the rest so that when they went back
they would have the rest of the fun. Blanchard also said, "I want to see Gust
Pond; he abused an Irishman, and I want to abuse him just as bad as he abused
the Irishman. Pond has to be abused any way." He also said to Ward, "This is
good bread, I don't know but it may be the last piece of bread I'll eat." Plant
also made threats. A short time after returning, they were heard to say they
were going back again; were going to find him and to whip him, or have the soul
out of him." It is to be remarked that we have their language as rendered by an
interpreter, who was evidently illiterate, or at least incompetent to translate
into very good English, and it is impossible for us to determine the exact force
of what was said.

The party then went back to Pond's, and asked admittance to search
for him. His wife refused to let them in. They immediately went to the
net-house, where Cull was asleep. Plant seized Cull, and pulled him out of bed
on the floor, and began choking him. Cull demanded who it was, but received no
answer. Blanchard and Robilliard had commenced tearing down the boards. Pond
went to the door and hallooed, "Who is tearing down my net-house?" to which
there was no answer. The voices of a woman and child were heard crying, and the
woman's voice was heard twice to cry out "for God's sake!" Cull's voice was also
heard from the net-house, not speaking, but (p.181)hallooing as if he was in pain. Pond cried out loudly,
"Leave, or I'll shoot." The noise continuing, he gave the same warning again,
and in a few seconds shot off one barrel of the gun. Blanchard was found dead
the next morning. Pond took immediate steps to surrender himself to justice.

A question was raised whether the net-house was a dwelling or a part
of the dwelling of Pond. We think it was. It was near the other building, and
was used not only for preserving the nets which were used in the ordinary
occupation of Pond, as a fisherman, but also as a permanent dormitory for his
servants. It was held in The People v. Taylor, 2 Mich.,
250, that a fence was not necessary to include buildings within the
curtilage, if within a space no larger than that usually occupied for the
purposes of the dwelling and customary out-buildings. It is a very common thing,
in the newer parts of the country, where, from the nature of the materials used,
a large building is not readily made, to have two or more small buildings, with
one or two rooms in each, instead of a large building divided into
apartments.

We can not, upon a consideration of the facts manifest from the bill
of exceptions, regard the charges asked by the defense as abstract or
inapplicable to the case. It was for the jury to consider the whole chain of
proof; but if they believed the evidence as spread out upon the case, we feel
constrained to say that there are very few of the precedents which have shown
stronger grounds of justification than those which are found here. Instead of
reckless ferocity, the facts display a very commendable moderation.

Apart from its character as a dwelling, which was denied by the
court below, the attack upon the net-house for the purpose of destroying it, was
a violent and forcible felony. And the fact that it is a statutory and not
common law felony, does not, in our view, change its character. Rape and many
other of the most atrocious felonious assaults, are statutory felonies only, and
yet no (p.182)one ever doubted the right to
resist them unto death. And a breaking into a house with the design of stealing
the most trifling article, being common law burglary, was likewise allowed to be
resisted in like manner, if necessary. We think there is no reason for making
any distinctions between common law and statute felonies in this respect, if
they are forcible and violent. So far as the manifest danger to Pond himself,
and to Cull, is concerned, the justification would fall within the common
law.

It is claimed by the prisoner's counsel, that we are authorized to
pronounce upon the case the judgment which the facts warrant. Had the facts
spread out in the bill of exceptions been found as a special verdict by the
jury, this would be true. But as the case stands, we can only consider them as
bearing upon the instructions given or refused. The errors being in the rulings,
and not in the record outside of the bill of exceptions, we can do nothing more,
in reversing the judgment, than to order a new trial. The district judge has
ruled upon the law questions in such a way as to present them all fairly as
questions not before decided in this state. We think there was error in
requiring the actual instead of apparent and reasonably founded causes of
apprehension of injury; in holding that the protection of the net-house could
not be made by using a dangerous weapon; and that the conduct of the assailing
party was not felonious; and also in using language calculated to mislead the
jury upon the means and extent of resistance justifiable in resisting a
felony.

We do not deem it necessary to pass upon the minor points, as we do
not suppose the authorities will deem it important to proceed further, unless
the facts are very different from those presented.

The judgment below must be reversed, and a new trial granted.

Manning and Christiancy JJ. concurred.

Martin Ch. J. concurred in the result.

[1] There is no
positive rule for the definition of justifiable homicide; it must depend upon
the circumstances and surroundings of each case, Patton v.
People, 18 Mich., 314. One who is threatened with an attack by an
assailant is authorized to act, and his actions are to be judged in the light of
the circumstances as they appeared to him at the time, and if his assailant
follow him up in a threatening manner for the purpose of frightening him, and so
as to make him believe that a violent attack is imminent, it is immaterial
whether a forcible attack was actually intended or not, Hurd
v. People, 25 Mich., 405; State v. Martin, 30
Wis., 216.